UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class FREDRICK J. SMITH
United States Army, Appellant
ARMY 20160316
Headquarters, 1st Cavalry Division (Rear)(Provisional)
Douglas K. Watkins, Military Judge
Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial)
Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial)
For Appellant: Major Christopher D. Coleman, JA; Captain Matthew L. Jalandoni,
JA (on brief).
For Appellee: Lieutenant Colonel A.G. Courie III, JA.
5 May 2017
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SUMMARY DISPOSITION
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CAMPANELLA, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of sexual assault and abusive sexual contact in violation of
Article 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge and confinement for thirteen months. The convening authority approved
only so much of the adjudged sentence as provided for a bad-conduct discharge and
confinement for twelve months pursuant to a pretrial agreement.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises three issues personally pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982); two merit discussion and one merits relief.
SMITH—ARMY 20160316
Post-Trial Delay
Appellant complains he suffered an undue, post-trial delay because 284 days
elapsed between his court-martial and the convening authority’s action. While we
find no due process violation under Barker v. Wingo, 407 U.S. 514 (1972), we also
find no reasonable explanation for the delay and processing errors in this case and
accordingly provide relief in our decretal paragraph. See United States v. Collazo,
53 M.J. 721, 727 (Army Ct. Crim. App. 2000).
Definition of Sexual Act
Appellant argues that his actions did not meet the definition of sexual act
from the Military Judges’ Benchbook, 1 which he claims defines sexual act as “the
penetration, however slight, of the vulva or anus or mouth of another by the penis.” 2
Appellant was convicted of putting the victim’s penis in appellant’s mouth, so he
now claims he was not provident to Specification 2 of Charge I in that the victim
was not penetrated.
Paragraph 3-45 of the Benchbook defines “sexual act” via two subsections:
(A) contact between the penis and the vulva or anus or
mouth, and for purposes of this subparagraph contact
involving the penis occurs upon penetration, however slight;
or
(B) the penetration, however slight, of the vulva or anus or
mouth of another by any part of the body or by any object,
with an intent to abuse, humiliate, harass, or degrade any
person or to arouse or gratify the sexual desire of any
person.
(Emphasis added.)
Appellant seems to merge these two definitions in his argument. Both the
Benchbook and the version of Article 120, UCMJ, under which appellant was
charged, include the definition of sexual act as “contact between the penis and the
1
Dep’t of Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook
[hereinafter Benchbook], para. 3-45 (10 Sep. 2014).
2
Appellant does not state to which paragraph or version of the Benchbook he is
referring.
2
SMITH—ARMY 20160316
vulva or anus or mouth.” UCMJ art. 120 (2012). We, therefore, find no reasonable
basis in law or fact to question the providence of his plea.
CONCLUSION
The findings of guilty are AFFIRMED.
After considering the entire record and the post-trial delay, the court
AFFIRMS only so much of the sentence as provides for a bad-conduct discharge and
confinement for eleven months. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the sentence set aside by this
decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).
Judge HERRING and Judge PENLAND concur.
FOR THE
FOR THE COURT:
COURT:
JOHN P. TAITT
JOHNDeputy
Chief P. TAITT
Clerk of Court
Chief Deputy Clerk of Court
3
United States v. Private First Class FREDRICK J. SMITH
Combined Opinion